BNUMBER:  B-261758
DATE:  October 26, 1995
TITLE:  Moore Medical Corporation

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Matter of:Moore Medical Corporation

File:     B-261758

Date:     October 26, 1995

Joseph C. Tarantino for the protester.
Joseph K. Wiener, Esq., Piper & Marbury, for General Medical 
Corporation; Gene R. Carper for Seneca Medical, Inc., and J. Michael 
O'Connor for Colonial Healthcare Supply Co., interested parties.
Barbara J. Stuetzer, Esq., and Phillipa L. Anderson, Esq., Department 
of Veterans Affairs, for the agency.
Christina Sklarew, Esq., John Van Schaik, Esq., and Michael R. Golden, 
Esq., Office of the General Counsel, GAO, participated in the 
preparation of the decision.

DIGEST

Agency's evaluation of proposals for medical/surgical supplies under a 
primary distributor program was reasonable where protester's proposal 
and references did not demonstrate sufficient breadth, depth, or 
relevancy of experience to assure contracting officer that the firm 
could successfully perform the contract.

DECISION

Moore Medical Corporation protests the rejection of its proposal by 
the Department of Veterans Affairs (VA) under request for proposals 
(RFP) No. M3-Q1-95, alleging improprieties in the agency's evaluation 
of  proposals.

We deny the protest.

The RFP was issued to establish a primary distributor program for 
procuring medical/surgical supplies through the award of multiple 
distributor agreements for each of 25 geographic cluster groups.  The 
RFP statement of work explained the agency's intention to convert to 
commercially based distribution systems by establishing a multiple 
award medical/surgical primary distributor schedule for brand-name 
specific and generic medical and surgical supplies.  The RFP described 
a primary distributor as a business concern that functions as a 
purchaser's principal source for a broad product line of medical and 
surgical supplies.  The VA and other government agencies' medical 
facilities would use the distributor agreements to select primary 
(and/or secondary) distributors to provide medical/surgical supplies.  
The RFP explained that successful offerors were to maintain inventory 
for an extensive medical/surgical product line and were to possess the 
experience, skills and capability to provide distribution services for 
such products along a full continuum of distribution strategies, 
including conventional, just-in-time and stockless distribution 
strategies.[1]  Contractors would enter into customer ordering 
contracts for delivery of products under particular distribution 
strategies with authorized VA facilities in the geographic cluster for 
which the contractor received an award.  

The RFP stated that awards would be made on a cluster-by-cluster basis 
and that three awards would be made for each geographic cluster.  The 
RFP also stated:

     "It is VA's desire that all three awards include "stockless" 
     distribution.  However, in the event that an acceptable offer is 
     not received from a small business firm with "stockless" 
     capability, VA will give consideration to small business firms 
     who do not have "stockless" capability.  To assure product and 
     distribution service availability through the full continuum of 
     the three distribution strategies, at a minimum, two of the three 
     awards shall include "stockless" distribution."

The RFP also stated that awards would be made to the responsible 
offerors whose offers conform to the solicitation and which 
represented the best overall expected value, price and technical 
factors considered.  The RFP listed two technical evaluation 
factors--technical excellence and socioeconomic consideration--and 
stated that they were listed in descending order of importance and 
that together, they were more important than price.  Technical 
excellence included the following four subfactors:  product 
availability, distribution services, operational capability, and 
quality control.  Under this factor, the RFP stated that "[t]he 
offeror's proposed range and breadth of products and distribution 
services (including value-added) together with its supporting 
operational expertise and quality assurance programs will be evaluated 
to determine the offeror's relative ability to deliver an extensive 
medical/surgical product line and to furnish a full continuum of 
distribution services in accordance with the Statement of Work."  

In addition, the RFP advised that the agency would develop a level of 
confidence assessment rating ("LOCAR") for each offeror.  This rating 
was to reflect the government's degree of confidence that the offeror 
would keep the promises it made in its proposal.  The rating was to 
"be used to adjust the Government's evaluation of the offeror's 
proposal, and may be highly influential to the determination of which 
offeror represents the best overall expected value."  The RFP stated 
that in developing the LOCAR for each offeror, the agency would 
consider the factors of past performance and financial condition, and 
that past performance and experience, or lack thereof, would be the 
most important factor in developing the LOCAR.  The RFP also stated 
that the government would: 

     "evaluate the offeror's reputation for conforming to 
     specifications and to standards of good workmanship, for 
     adherence to contract schedules (including the administrative 
     aspects of performance), for reasonable and cooperative behavior 
     and commitment to customer satisfaction, and for having a 
     business-like concern for the interests of the customer.  The 
     Government will also evaluate the depth, breadth, relevancy, and 
     currency of the offeror's work experience."  

The agency received 79 proposals in response to the RFP, including 
proposals from Moore for each of the 25 geographic clusters.  Two 
technical teams evaluated the initial proposals, while the contracting 
officer evaluated the business proposals.  The VA conducted 
discussions in writing, requesting additional information from Moore 
regarding aspects of its technical and business proposals.  Regarding 
Moore's business proposal, the agency asked Moore to provide discounts 
for prompt payment; to clarify whether the firm would accept emergency 
orders; to provide the firm's commercial goods return policy; and to 
provide additional information regarding past or current contracts.  
Regarding Moore's technical proposal, the agency requested that Moore 
identify the medical/surgical manufacturers that had been listed with 
Moore's pharmaceutical and laboratory manufacturers, and requested 
further detail concerning five areas not relevant here.  Moore 
submitted a revised proposal, and the contracting officer requested 
additional information to clarify Moore's responses.  The technical 
panels evaluated the revised proposals and best and final offers 
(BAFO) were requested.  Moore submitted a BAFO that included no 
additional technical revisions and thus did not require further 
technical review.  

Moore's technical proposal received the highest score, earning 53.33 
points on a
60-point scale.  When price proposal scores were calculated, Moore's 
proposal also received the highest price scores among the offers 
considered for award, receiving from 33 to 36.6 points on a 40-point 
scale for each cluster.[2]  However, the contracting officer then 
concluded that Moore's prices were "out of line with the price 
proposal scores of other offerors within the competitive range," since 
they were significantly lower.  The contracting officer asked Moore to 
verify its offered fees, and Moore did so.

Overall scores were calculated for each offeror by adding together the 
point scores for the technical and price proposals.  The contracting 
officer developed a LOCAR for each offer, and multiplied the overall 
proposal score by this factor to determine which offers represented 
the best expected value to the government.  Moore's proposal was 
assigned a LOCAR rating of .50.  In the report prepared in response to 
the protest, the contracting officer states that: 

     "[a]lthough the technical panel considered Moore's technical 
     proposal very competitive, the information contained in their 
     business proposal affected my level of confidence that the 
     protester would keep the promises it had made in its proposal, 
     and I assessed that the protester had a 50/50 chance of 
     fulfilling those promises, and applied a LOCAR factor of .50 to 
     the proposal scores.  I determined that Moore Medical's proposal 
     did not represent the best overall expected value and that Moore 
     Medical should not be further considered for award." 

Consequently, Moore was notified that it was no longer eligible for 
award.  

Moore protests that its proposal was improperly evaluated and 
unreasonably excluded from the competition.  The protester contends 
that the agency's stated basis for assessing such a low LOCAR for 
Moore's proposal was not reasonable, nor were they raised during 
discussions.  Thus, Moore argues that the perceived deficiencies in 
the proposal either were based on misunderstandings on the evaluators' 
part or concerned issues that could have been addressed and remedied 
through meaningful discussions.  

In considering protests against an agency's evaluation of proposals, 
we will not evaluate the proposals anew and make our own 
determinations as to their acceptability or relative merits.  
SeaSpace, 70 Comp. Gen. 268 (1991), 91-1 CPD 179.  Rather, we will 
examine the record to determine whether the evaluation was fair and 
reasonable and consistent with the evaluation criteria.  Id.  

At issue here is the LOCAR score that the contracting officer assigned 
to Moore.  The application of this rating reduced Moore's overall 
score by half and effectively excluded Moore from the competition.  
The RFP specifically provided that this rating would be used to adjust 
the government's evaluation of the offerors' proposals, and could be 
highly influential to the determination of which offer represented the 
best overall expected value.  In other words, offerors were advised 
that the LOCAR could directly affect the source selection decision.  
Further, the RFP stated that past performance and experience, or the 
lack thereof, would be the most important factor in developing the 
LOCAR.

After reviewing Moore's business proposal, the contracting officer 
concluded that Moore's experience primarily involved the distribution 
of pharmaceutical products, rather than medical/surgical supplies.  In 
addition, she concluded that Moore lacked experience as a prime 
vendor.  Each "evaluation summary" form that the contracting officer 
completed for Moore's proposal for the various clusters has the 
following comment:

     "A LOCAR of .50 was assessed since information provided by Moore 
     Medical is representative of pharm. products and not med/surg 
     products.  Current & past experience was supported by its 
     references to be with pharmaceutical products--thus, offeror 
     lacks experience relevant to the dist. of med/surg products.  
     Moore also confirmed in its proposal its lack of experience as a 
     med/surg prime vendor, a fact confirmed by its references and 
     demonstrated by its very low dist. fees."

A "Past Performance LOCAR worksheet" for Moore states:

     "Offeror's financial condition is good.  However, relevancy & 
     breadth of experience in the medical/surgical area could not be 
     assessed.  Thus, there is a 50% chance of probability this 
     offeror can perform as a med/surg primary distributor."

The record shows that the contracting officer's primary concern was 
Moore's experience, both because she believed it was limited to 
pharmaceutical products and because the firm's experience appeared to 
be as a distributor rather than a prime vendor (which concern the 
contracting officer believed to be further reflected in Moore's low 
distribution fees).  Although Moore listed experience which included 
the distribution of both medical and pharmaceutical supplies, the 
references that Moore included for past and current contracts reported 
that most or all of the supplies they purchased from Moore were 
pharmaceutical.  

Moore argues that its technical proposal adequately demonstrates its 
medical/surgical product availability and distribution capability and 
shows that the firm carries more than 8,000 medical/surgical line 
items representing more than 500 vendors.  The protester listed 20 
categories of products in its product base, and attached lists of its 
products and vendors.  In its business proposal, Moore described its 
approach as utilizing approximately 325 different vendors to supply 
more than 8,000 medical/surgical products through its four regional 
distribution centers.  However, the agency points out that Moore's 
technical proposal in fact received a very high score.  What lowered 
Moore's score was the LOCAR rating, which was based on Moore's 
description of its recent and current contracts and on the actual past 
experience profile that was developed by contacting the references 
Moore had furnished.  

While Moore asserts that it is a distribution company, with 
significant experience in distributing a vast product line to many 
varied customers, and does not distinguish between product groups in 
demonstrating its capability to deliver products to its customers, we 
think the agency nonetheless could reasonably distinguish between 
product lines and modes of distribution in assessing the probability 
of successful performance.  The contracting officer offers the 
following explanation of her conclusion that experience distributing 
pharmaceutical products was not relevant here:

     "Pharmaceuticals and medical/surgical products are two totally 
     different industries. Whereas pharmaceutical products have 
     uniform packaging, are small in size (thus taking little space), 
     and don't weigh much, medical/surgical products in contrast are 
     packaged in all kinds of sizes, are bulky (taking warehouse 
     space), and heavy (i.e. diapers, surgical instruments)."

Regarding the agency's assertion that the protester lacks experience 
as a prime vendor, Moore itself concedes that it lacks any specific 
experience as a prime vendor under a government contract, asserting 
only that the firm "successfully marketed a 'one-stop shopping' 
concept to over 1,500 federal government customers, including the 
Bureau of Prisons and the Coast Guard," before any federal government 
prime vendor program was developed.  Moore insists that because its 
deliveries under this "de facto prime vendor" strategy were consistent 
with the needs of the ordering facilities at that time, it has 
demonstrated its ability to meet the agency's requirements here.  
However, even that assertion is tempered by Moore's explanation that 
its experience differed from the requirements at issue here because it 
did not involve the variety of distribution strategies currently 
required.   

The contracting officer, moreover, argues that Moore's past experience 
is not directly applicable, stating that:

     "The [Federal Supply Schedule] program is entirely different from 
     the Medical/Surgical Primary Distributor Program.  For example, 
     under the FSS program, deliveries are on a conventional basis, 
     and contractors are not required to provide distributor services 
     along a full continuum of distribution strategies as required by 
     the Statement of Work of the solicitation.  DLA [D]efense 
     Logistics Agency] [Decentralized Blanket Purchasing Agreement 
     DBPA] contracts are essentially pricing agreements, i.e., 
     agreement is reached with suppliers to have the awarded 
     medical/surgical distributors distribute suppliers' products at 
     the agreed upon negotiated product prices with the suppliers.  
     Distribution of products and related services are provided by the 
     distributor, not the DBPA supplier."

The contracting officer states that she contacted all five of the 
references that Moore provided in its proposal, to assess the firm's 
past performance.  From these contacts, she concluded that the 
majority of products being distributed under those contracts were 
pharmaceutical, and were delivered on a conventional basis; these 
conclusions, taken together with her conclusion that Moore's prices 
reflected a lack of relevant experience, resulted in her LOCAR 
assessment.  We think the contracting officer's LOCAR assessment was 
consistent with the terms of the RFP.  Within the discretion that is 
afforded contracting officers in assessing risk and applying 
evaluation criteria, we think she could reasonably conclude that the 
experience demonstrated in Moore's proposal failed to show the depth, 
breadth, relevancy, and currency of work experience that would merit a 
higher LOCAR.  

Finally, we are not persuaded that the discussions with Moore were 
inadequate.  First, since the assessment of the effect of Moore's 
inadequate experience was part of the award decision, rather than the 
evaluation process, this was not a weakness or deficiency that 
agencies ordinarily would be required to raise during discussions.  
Moreover, the agency asserts that "Moore Medical's lack of experience 
was perceived by VA to be an inherent weakness in actual experience 
which [Moore] could not change and which could not be corrected 
through discussions."   The prior experience of an offeror is an 
aspect of its proposal that is generally not subject to improvement 
(although sometimes experience may be appropriately supplemented 
through additional personnel, subcontracting, or additional detail 
about experience described in a proposal).  Consequently, agencies are 
not always obligated to discuss weaknesses identified in prior 
experience.  AWD Technologies, Inc., B-250081.2, B-250081.3, Feb. 1, 
1993, 93-1 CPD  83.  Here, given the RFP's statement that an 
offeror's record of past performance and experience would be the most 
important factor in the development of the LOCAR, and the statement 
that the LOCAR would be used to adjust the government's evaluation of 
proposals, we believe the agency reasonably assumed that the protester 
had presented its most relevant prior experience, and that the failure 
to provide evidence of work experience of appropriate depth, breadth, 
relevancy, and currency demonstrated that the firm lacked such 
experience (the contracting officer's own investigation seems to have 
reasonably confirmed the lack of certain relevant experience.).  We 
think the protester was adequately placed on notice by the terms of 
the RFP itself that relevant information regarding its past 
performance should be included in its proposal, so that the agency was 
not required to request additional information during discussions.    

The protest is denied.

Comptroller General 
of the United States

1. Among other differences, the three distribution strategies involve 
different speeds and frequencies of deliveries.

2. The VA has provided evaluation summaries for several of the 
clusters for which award has been made.  While it is not entirely 
clear from the record how the agency arrived at its price scores, it 
is clear that Moore's prices were relatively low.  Price scores for 
the other offerors generally were not higher than 20.